![handle is hein.journals/tlro93 and id is 1 raw text is: INTANGIBLE INACCESSIBILITY: HOW WAYFAIR PAVES THE
WAY FOR AN EXPANDED ADA*
I. INTRODUCTION
Take a moment to bask in the nostalgia of childhood in the 1990s: the comedy
of Kenan and Kel;1 the sweet, jarring taste of Surge;2 and the rhythmic tones of dial-up
internet connecting to AOL framed summer afternoons. The children of the 1990s have
grown up, established professions, and started families, all while adjusting to the
technologies and breakthroughs of today's world. Another child of the 1990s, the
Americans with Disabilities Act (ADA),3 remains stuck in the past.
Although the ADA has improved accessibility to public accommodations for
millions of individuals with disabilities, often in the form of alterations to physical
locations like ramps, elevators, and braille signs,4 it has not been explicitly expanded to
cover websites and apps as public accommodations.' Courts, faced with claims from
consumers with disabilities who are attempting to use inaccessible websites and mobile
apps, are split as to how to apply the ADA to emerging technologies.6 In some areas of
the country, consumers with disabilities are living under a 1990s-era ADA, in which
inaccessibility to a physical location is needed to make a claim.7 In other areas,
consumers with disabilities can use the ADA as protection against companies using more
modern technologies without a physical location.8 The Supreme Court has refused to
address this geographic disparity regarding who can combat discrimination against the
disabled.9
This Comment analyzes the circuit split regarding the ADA's applicability to
emerging technologies and proposes that the Supreme Court use similar reasoning to its
* Cassidy C. Duckett, J.D. Candidate, Temple University Beasley School of Law, 2021. The author
expresses immense gratitude to Sean Britt, Maryellen Kennedy Duckett, Randall Duckett, Jim Kennedy, and
Kat Contreras for their endless support in the matters of law school and life.
1. Kenan and Kel (Nickelodeon television broadcast 1996-2000).
2. Surge is a citrus soda originally produced in the 1990s by Coca-Cola. About Surge, SURGE,
http://www.surge.com/surge.html/ [https://perma.cc/Y5CS-JZWP] (last visited Apr. 1, 2021).
3. 42 U.S.C. §§ 12101-213 (2018).
4. See NAT'L COUNCIL ON DISABILITY, THE IMPACT OF THE AMERICANS WITH DISABILITIES ACT:
ASSESSING THE PROGRESS TOWARD ACHIEVING THE GOALS OF THE ADA 45-53 (2007).
5. See infra Part II.A for a discussion of the ADA's current state.
6. See infra Part II.B for a discussion of the circuit split.
7. See infra Part II.B.3.
8. See infra Part II.B.1.
9. See, e.g., Domino's Pizza, LLC v. Robles, 140 S. Ct. 122, 122 (2019) (mem.); see also Jennifer S.
Rusie, The Domino's Effect What to Expect as a Result of SCOTUS's Denial of Cert, NAT'L L. REV. (Oct. 8,
2019), http://www.natlawreview.com/article/domino-s-effect-what-to-expect-result-scotus-s-denial-cert
[https://perma.cc/CW8J-NQBT] ([T]he Supreme Court's decision (to not make a decision) has the effect of
maintaining the status quo with respect to website accessibility, which varies by jurisdiction and is frustratingly
unspecific throughout the United States.).
1](ViewImageLocal?handle=hein.journals/tlro93&div=1&collection=&method=preview&ext=.png&size=3)
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